European Round-Table on Patent Practice (EUROTAB)
|European Case Law Identifier:||ECLI:EP:BA:2005:D001704.20050211|
|Date of decision:||11 February 2005|
|Case number:||D 0017/04|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||-|
|Relevant legal provisions:||
Summary of Facts and Submissions
I. By letter of 19 August 2004, the Examination Secretariat informed the appellant that his application for enrolment for the European qualifying examination in 2005 had been refused, for the reason that his degree was a list B qualification. His diploma did not fulfil Article 2 of the "Instructions concerning the qualifications required for enrolment for the European qualifying examination", because his qualification was accepted to be a Bachelor without honours, as specified under Article 3(a). For that reason Article 3(b) was applicable, meaning that at least three year's experience was needed to be completed in the patent or other appropriate field in addition to the period of full-time training or work specified in Article 10, paragraph 2(a) of the REE.
II. The appellant requests that the decision under appeal be set aside and that he be allowed to participate in the European qualifying examination in 2005.
III. The appellant's grounds for the appeal may be summarised as follows:
According to the Danish diploma the title of his degree is "Diplomingeniør", which was translated into English as Bachelor of Science, with no reference to honours. This was due to the fact that the Danish educational system does not operate with this term. The degree of "Diplomingeniør" comprises three and a half years intensive studies. Another bachelor line at the Danish Technical University leads to "Teknikumingeniør" or a "BS in technical science". This degree comprises three years of study. Although they are of different lengths both have been translated as bachelor degrees which is ambiguous and should therefore not be taken into account.
According to a printout from the homepage of the Soceity of Danish Engineers, the degree "Diplomingeniør" is equivalent to a Bachelor of Science with honours, whereas the degree "Teknikumingeniør" is equivalent to a Bachelor of Science without honours. The Society has confirmed that the degree of the appellant is to be considered as a Bachelor of Science with honours.
IV. In further support of the appeal, the appellant filed documentation regarding the details of the study curriculum for a "Diplomingeniør".
Reasons for the Decision
1. The appeal is admissible.
2. The EPC and the provisions governing the European qualifying examination are both based on the rule of law, which forbids an institution to apply provisions that are not known beforehand by the parties. In addition, the applicable law must be transparent and its application predictable. It must also be capable of application in an equal manner.
3. Based on the problems identified in decision D 8/04 with regard to Articles 2 to 4 of the Instructions concerning the qualifications required for enrolment for the European qualifying examination as amended and published in OJ 2003, Supplement to OJ 12/2003, page 17, the Board is of the opinion that the law is not sufficiently precise and coherent to enable a fair comparison of educational qualifications for the purpose of establishing a candidate's right to sit the European qualifying examination.
4. The so-called list B, referred to by the Secretariat in its decision not to accept the appellant's enrolment, is the second of two such lists (A and B) which are purported to divide institutions and qualifications into groups falling either under Article 2 or Article 3 of the Instructions, respectively, as required by Article 5(1) of the Instructions. These lists have however not been made publicly available. The secret conditions for enrolment in respect of the level and length of educations make it virtually impossible for appellants to give any sensible reasons why a decision under appeal should be overturned. This could lead to situations of déni de justice.
5. The mere reference to list B for refusing enrolment cannot serve as a reason for the decision, since the content of the list is not available. This means that the requirement that decisions from the Examination Secretariat must be reasoned has not been met, an infringement of Article 22(1) REE.
6. While the Board recognises the difficulties in comparing qualifications from different states, this is not a reason to apply parameters which are not objectively assessable nor available to the persons concerned. Article 5 of the Instructions does not require these lists to be secret. Further, through this secrecy, the appellate instance is excluded from examining whether or not these lists and the concept behind them are in conformity with basic legal principles. It is therefore the duty of the Examination Secretariat to set down such public rules and examples for the grouping into list A or B of different educations that are understandable to candidates and can be applied in a reasonably foreseeable manner. The lists must also be public.
7. Even disregarding the board's description in D 8/04 of the problematic wording of Articles 3 and 4 of the Instructions, the board in the present case must conclude that the listing of various qualifications according to the naming of institutions and/or degrees is precarious at best and probably contrary to basic principles in most instances. A more appropriate parameter would be the length of qualifications, combined with a provision which requires a more detailed description of the curriculum for each degree, as well as for single courses and for practice requirements, etc. The evaluation of educations by way of so-called ECTS-points (European Credits Transfer System) is one parameter among several that could be used for this purpose.
8. From D 8/04 it is clear that qualifications and their labelling may differ even within the same country, eg for historical reasons. This makes it particularly important to examine not only titles of degrees but also their substantive content.
9. An appeal shall lie from decisions of the Examination Board and the Secretariat only on grounds of infringement of the Regulation on the European qualifying examination for professional representatives, see Article 27 of the Regulation. This would mean that the Board only would have the power to set aside the decision under appeal and refer the case back to the Examination Secretariat for further prosecution. Such an approach would however in all likelihood mean that the appellant would be prevented from sitting the 2005 examination. This limited result of the appeal would therefore not put the appellant in the same situation as if the Secretariat had accepted his enrolment. The Board must therefore go on to examine whether or not the appellant would be qualified under the applicable conditions to enrol. In this examination and in the absence of any rules regarding the grouping of degrees into list A or list B, the Board has to assume that as a rule a university or equivalent study curriculum exceeding three years of study would meet the conditions for a List A listing, cf. Article 10(1) of the Regulation, stipulating that candidates possessing a university - level scientific or technical qualification or an equivalent level of scientific or technical knowledge are entitled to enrol.
10. The above does not mean for an applicant that his degree automatically qualifies for enrolment as soon as it exceeds three years of study. Indeed, the details of the study curriculum must still be examined to assess whether the candidate is likely to be able to sit the examination with some chance of success. The conditions for enrolment are also laid down in the interest of presumptive candidates not to spend their efforts on futile attempts when their educational background is not sufficient.
11. Based on the certificate provided regarding the degree of "Diplomingeniør" and the further information given about the appellant's qualifications, eg that this degree amounts to 210 ECTS-points, corresponding to three and a half years of study at a technical university, the Board concludes that the appellant is qualified under Article 2 of the Instructions to sit the examination without having to undergo further three years of training or practice as required under Article 3(b) of the Instructions.
12. In accordance with Article 27(4) REE, reimbursed of the appeal fee shall be ordered.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The appellant is qualified under Article 2, Instructions concerning the qualifications required for enrolment for the European qualifying examination, to enrol for the 2005 examination.
3. The appeal fee is reimbursed.